Siman 440

The Rambam wrote at the beginning of the fourth chapter: It is written in the Torah: "No chametz shall be seen of yours" – one might think that if he hid it, or deposited it in the hand of a non-Jew, he would not be in violation? The Torah teaches: "Sourdough shall not be found in your houses" – even if he deposited it or hid it. One might think he would not be in violation unless the chametz is found in his house, but if it was far from his house in a field or in another city – he would not be in violation? The Torah teaches: "In all your borders" – in all your domain. One might think he would be obligated to remove from his domain chametz of a non-Jew or of the sanctuary? The Torah teaches: "No shall be seen of yours" – yours you do not see, but you see that of others, and that of the Most High. Thus you have learned that the chametz of an Israelite, if he left it in his domain, even hidden, and even in another city, and even deposited in the hand of a non-Jew – he violates "it shall not be seen" and "it shall not be found." Chametz of the sanctuary or of a non-Jew that was with an Israelite, even if it was with him in the house – behold this is permitted, because it is not his. And even if the hand of the Israelite has authority over it – they do not compel him to remove the chametz from his domain on Pesach. But he must make a partition ten tefachim high in front of the chametz of a non-Jew, lest he come to use it. But for that of the sanctuary – he does not need to, because everyone separates from the sanctuary, so that they do not come to a state of me'ilah. Thus far the wording of the Rambam, of blessed memory.

It must be understood: still, from where do we know that the chametz of an Israelite deposited in the hand of a non-Jew—behold, he violates "it shall not be seen"? For there is neither "your house" nor "your border" here. There is one who wrote based on a kal vachomer: for since the chametz of a non-Jew deposited in the hand of an Israelite, where he accepted responsibility upon himself, violates "it shall not be seen," as will be explained—all the more so his own chametz which is in the hand of a non-Jew (Maggid Mishneh). But this is not understood: for there, since he accepted responsibility upon himself—it is like his own, and in his domain. This is not the case with his chametz in the hand of a non-Jew—it is his, but not in his domain. Furthermore: behold, the Rambam says "Behold, you have learned...", which clarifies his intention that we learned this from a verse, and not from a kal vachomer. And there is one who wrote that the place where the non-Jew places his chametz—it is like the house of the Israelite (Kesef Mishneh). And this too is a wonder, for if so, why do we need the verse: "yours" you shall not see, but you may see that of others? Behold, the place where the chametz is placed is like the house of the non-Jew, and does one need a verse not to violate regarding the chametz of a non-Jew in the house of a non-Jew? Furthermore: for it is a simple matter that the place is not considered to belong to the depositor, unless he explicitly transferred the place to him, or designated a certain place for him, as I wrote in section 14, see there.

And furthermore: what is this that he wrote: One might think he does not transgress unless the chametz is in his house, but if it was far from his house in a field or in another city – he would not transgress? The Torah teaches: "in all your borders" – in all your domain. Thus far his words. But another city is not "your borders." And furthermore: even a field is not "your borders," for one cannot say that it deals with his own field, for if so, he should have said "in his field."

And in truth, the Ramban, of blessed memory, wrote in the Chumash that one only violates "it shall not be seen" with his own chametz that is in his domain (the Maggid Mishneh cited him there). But his own chametz that is not in his domain—he does not violate "it shall not be seen." And so wrote the Ran in the first chapter, and this is his wording: For even the chametz of an Israelite, as long as it is in the domain of a non-Jew—he does not violate it. And so it is stated in the Mechilta: Just as "your house" is in your domain, so too "your border" is in your domain: this excludes the chametz of an Israelite that is in the domain of a non-Jew... However, these words apply according to the Torah, but according to the Rabbis, the chametz of an Israelite that is in the domain of a non-Jew—requires removal... Thus far his words. Behold, their opinion is explicit that as long as the chametz is not in his actual domain—he does not violate "it shall not be seen" according to the Torah, and only according to the Rabbis is he obligated to remove it. (And this is not related to the words of the Geonim cited by the Rosh and the Tur, that when the bailee accepted responsibility—the depositor does not violate it, as will be explained. For that is by reason of responsibility, but otherwise they agree with the Rambam. And see Sha'agat Aryeh siman 83, who questioned the Beit Yosef and the later authorities, for they treated the two opinions as one matter and it is not so, see there.)

It appears to me regarding the intent of the Rambam that his words are clear, and this is the explanation: In the Torah four terms are written concerning this matter: "shall not be seen," "shall not be found," "your house," and "your borders." Now, the difference between "shall not be seen" and "shall not be found" is understood: for if it only said "shall not be seen"—I would have said the matter depends on seeing, but if he hid it—he does not transgress. Therefore it is written "shall not be found." But between "your house" and "your borders"—if it should enter your mind that "your borders" means his actual domain, meaning that the domain belongs to him, what does it matter to me if it is the domain of his house, or the domain of his field or his karpif? Behold, it is all one: for his house is his, and his field and his karpif. And there is no distinction between them regarding all the laws of sale, gift, and acquisition. Rather, certainly this "in all your borders"—the intent is not that the border be his and the domain be his, but rather it refers to the chametz, that the chametz shall not be "in all your borders," meaning: any place where the chametz is yours, and that is that the chametz belongs to you, and let it be placed wherever it is placed. And this which the Rambam wrote, "in all your borders"—in all your domain, this is an explanation regarding the chametz being under his hand, meaning that the chametz should be his, such that he can do with it whatever he wishes. And this is what he wrote, "I might think he does not transgress unless the chametz is in his house...", meaning: that he should not transgress unless the chametz is placed in his domain, either in his house or in his field or in his karpif. The Torah teaching says: "in all your borders"—in all your domain, meaning: that we do not require that the domain be yours, but rather that the chametz be in your domain, meaning: that you have control over the chametz, that it be in your domain to do with it whatever you wish. This is clear in his intent with the help of Heaven.

For in truth, the term "gevul" does not refer specifically to what belongs to the person, and the entire Tanakh is full of this, such as: "the gevul of Israel," and likewise "Who makes your gevul peace," and likewise "from the edge of the gevul of Egypt," and likewise "the gevul of the land of Edom" – where the intention is the entire country. And here too, the plain meaning of the verse "shall not be seen in all your gevul" – meaning "in the entire country." And there is clear proof for this from the Mekhilta, Parshat Bo (Parsha 10), and this is its wording: "In your houses" – why is this said? Since it is said "in all your gevul" – I might hear it according to its literal sense. Therefore, the verse teaches: "In your houses" – just as your houses are in your domain, so too your gevul must be in your domain... Behold, it is explicit that the meaning of "your gevul" is not "in your domain." And this is as I wrote, that "in all your gevul" – is like "in your entire country." And this is the explanation of the Mekhilta: Just as your houses etc. – this excludes the hametz of an Israelite that is in the domain of a non-Jew. That is to say: Just as in your houses the hametz is in your domain, such that you are able to do with it whatever you desire – so too your gevul must be in your domain, such that you are able to do with it whatever you desire. And that is: even if it is placed in the hands of others, but he does not owe money upon it. This excludes the hametz of an Israelite that is in the domain of a non-Jew. That is to say: that the hametz is in his domain, for he is owed money. (And also the Rosh in the first chapter, siman 4, wrote that the Mekhilta is dealing with a loan, see there. And in the Gemara 5b, this is the explanation: I only have that which is in houses; from where do I know pits... ? Therefore, the verse teaches: "in all your gevul," meaning: for I would have said only in houses where one sees the hametz constantly, and not in pits. Therefore, the verse teaches: "in all your gevul." And since it is forbidden even in the entire gevul, which is far from him and is not his domain, all the more so in pits. And I still say in houses... – in your gevulin you shall not see..., meaning: for I would have said that in the houses of others it is also forbidden, therefore the verse teaches "se'or"-"se'or" for a gezerah shavah... and examine closely and you will find it simple.)

And behold, all the poskim stand by the position of the Rambam, that the chametz of an Israelite deposited in the hand of a non-Jew violates "bal yera'eh" and "bal yimatzeh" by Torah law, to the point that the Rosh wrote that this requires no proof, see there. Only the Ramban and the Ran, of blessed memory, hold that by Torah law he does not violate it, for they interpret "in all your borders" — meaning in a domain that belongs to him, and only by rabbinic law must he destroy it. And all this is without the acceptance of responsibility. But with the acceptance of responsibility there are other laws, as we will explain with the help of Heaven. And in the Tur and Shulchan Aruch the opinion of the Ramban and the Ran was not cited at all, see there. And the reason: because the halacha follows the majority of the poskim. And furthermore: for even according to their words — by rabbinic law he is obligated to destroy it, and they did not descend to distinguish between Torah law and rabbinic law, but rather between the forbidden and the permitted, as I have written at the beginning of the laws of Shabbat.

Our sages, of blessed memory, expounded from the expression "it shall not be found," that even the chametz of a non-Jew deposited in the hand of an Israelite, where the Israelite accepted responsibility for it—behold, he violates "it shall not be seen" and "it shall not be found." For the expression "it shall not be found" implies that it is found in your hand, and this is found in your hand. For without responsibility, he does not have to supervise it, and it is placed with him and he is not concerned for it. But when he accepted responsibility, behold, he is compelled to supervise the chametz, so that it is not lost and does not spoil, so that he will not need to pay. And it is called "found in your hand," and it is like his own regarding the prohibition of "it shall not be seen." And there is no difference whether the chametz is in his house, or in another place in his domain. And even if he does not see it, and even if he went back and deposited it in the hand of another non-Jew who is not its owner, for this is like one who deposits his own chametz in the hand of a non-Jew, for which he violates it (Magen Avraham, subsection 1). But if he went back and deposited it in the hand of the first non-Jew who deposited it with him—he does not violate it. Even though the responsibility for theft and loss still remains upon the Israelite, nevertheless it is permitted, for it is like one who accepts responsibility for the chametz of a non-Jew in the house of a non-Jew, which is permitted (ibid.). And there are those who disagree on this, for since the chametz was under the hand of the Israelite with responsibility, and it was like his own, when he went back and deposited it even with the first one—it is like he deposited his own chametz in his hand, and he violates "it shall not be seen" (Chok Yaakov, subsection 6). And the main ruling is like the first opinion (Mekor Chaim, subsection 4).

And if he deposited this chametz of the non-Jew, for which he accepted responsibility, in the hand of another non-Jew, and the other non-Jew accepted all responsibility—some say that the Israelite does not transgress (Magen Avraham there). And some say that he does transgress (Chok Yaakov, subsection 5). And the primary view is like the first opinion (Mekor Chaim there), for what was his, he has taken. And there is one who says that regarding chametz of a non-Jew that was deposited with him, and he accepted responsibility for it—bitul is of no benefit to him (Sha'agat Aryeh, siman 77). And so it stands to reason. For it is well and good regarding his own chametz—he has the authority to declare it ownerless and to nullify it, since during the time of Pesach it will be completely forbidden, a revelation of intent is sufficient, as I wrote in siman 431. But this chametz which is not his, and when Pesach arrives it will not be forbidden to the owner, and only the Torah decreed upon him that he should transgress "it shall not be seen," if so, by what power can he declare it ownerless or nullify it? And perforce he must return it to its owner, and if the owner is not in his house—he should sell it or burn it, and pay the non-Jew. And if a non-Jew deposited his chametz in the house of another non-Jew, and the Israelite accepted responsibility for it—it is permitted, since the chametz is not in his house (Mekor Chaim there). For this is the acceptance of responsibility for the chametz of a non-Jew in his house, which is permitted. And what difference is it to me if it is he, or what difference is it to me if it is another.

And if he transgressed "it shall not be seen" regarding this chametz—nevertheless, he may return the chametz to the non-Jew after Pesach. And this is not considered like one who profits from forbidden benefits, for we hold that one who steals chametz, and Pesach passed over it, says to him, "Here is yours before you," even regarding an Israelite, as I wrote in Choshen Mishpat siman 363. All the more so that he may return it to the non-Jew (Magen Avraham ibid.). And it is possible that even during Pesach he may allow him to take the chametz (ibid.). However, there is a concern that perhaps the non-Jew will sell it to an Israelite after Pesach, and the Israelite will stumble through the prohibition of chametz that was owned during Pesach (ibid.). Nevertheless, he need not be concerned about this, since he is returning to him what is his—he does not have to pay for this concern (Chok Yaakov subsection 4).

And with what level of responsibility does one violate "it shall not be seen"? The Tur wrote in the name of Ri that it is specifically when he is a shomer sachar, who is liable for theft and loss. And in the name of the Bahag he wrote that even if he is a shomer chinam, and is only liable for negligence—it is called responsibility, see there. And from the Rambam it is clear like the first opinion, for he wrote "if the Israelite accepted responsibility upon himself, that if it is lost or stolen..." see there. And the opinion of the Rosh is like the opinion of the Bahag. And according to what the Tosafot wrote in Bava Metzia (82b) in the name of Rashi, of blessed memory, he does not violate it unless he accepted responsibility for accidents, see there. And it is a wonder, for in the Bahag before us it also says theft and loss, and this is his wording in the chapter Kol Sha'ah: Certainly a gentile who deposited chametz with an Israelite, if the Israelite accepted guarding upon himself, since if he is negligent with it and it is stolen or it breaks he is liable to pay—he is liable to remove it, etc. Thus far his words. And if his intention was for negligence, why did he conclude with theft and loss? Rather, certainly this is what he meant: that his responsibility is for theft and loss, and this too is from a lack of guarding. Therefore he said "if he is negligent with it." And the Rosh seems to have interpreted that his liability is for the negligence, and through the negligence it was stolen or lost. And if so, he should not have said "stolen" but rather "lost," for loss is close to negligence. And it requires further study. And regarding the halacha, it is implied from our teacher, the Beit Yosef, like the first opinion. For the opinion of the Bahag and the Rosh he wrote in the name of "there are those who say," and the majority of opinions are like Ri, Rashi, and Tosafot, and the Rambam, and the Smag. And in practice, one should be stringent like the Bahag and the Rosh regarding a Torah prohibition.

The Rambam wrote: An extortionist who deposited his chametz with an Israelite, if the Israelite knows that if it is lost or stolen he will obligate him to pay for it, and he coerces and forces him to pay, even though he did not accept responsibility—behold, he is obligated to remove it, for it is considered as if it is his, because the extortionist obligates him in its responsibility. Thus far his words. And the Ra'avad disagrees with him, for how can he transgress "it shall not be seen" regarding a matter in which they are forcing him? And several of the Rishonim disagree with him, for that which is found in the Gemara (5b) in such a case—this is when it was the law of the kingdom in this matter, for the law of the kingdom is the law, and not regarding an extortionist (Maggid Mishneh). And in my humble opinion, it appears that the intention of the Rambam is that the acceptance of the chametz depends on his will, and if he wishes, he will not accept the chametz. And regarding this the extortionist will not force him, but rather if he accepted it, he will force him to pay when it is stolen or lost, and according to this, he rightly transgresses "it shall not be seen." And so it is explained from his wording that the deposit was by his will. Therefore, when he brought himself into this by his will, it automatically becomes like an acceptance of responsibility. And according to what we have explained, it is possible that the poskim do not disagree at all. (And the difficulty of the Taz, subsection 1, is answered; see there. And similar to this I found in the book Magen HaElef; see there.)

And there is one who says that according to the opinion of the Rambam, that even through an accident one violates "bal yera'eh," if so, in our sale of chametz where we record the money as a loan and receive from the non-Jew who is the buyer only a small amount, and it is clear that if the chametz is lost the buyer will not pay—if so, it is as if the responsibility for the chametz is upon the Israelite, and they violate "bal yera'eh" (Mekor Chaim, subsection 5). Therefore, one must specifically sell the room in which the chametz is placed, for then it is like the acceptance of responsibility in the house of the non-Jew (ibid.). However, with us, where we have the custom to appoint an Israelite as a guarantor for the buyer (according to the enactment of the Gra"z)—there is no concern in this. For if he does not pay—we claim from the guarantor. Yet with us, we also practice the custom of selling the room, as will be explained in siman 448, for the sake of the acquisition, as I will write there (and see Magen HaElef who rejected the words of the Mekor Chaim).

The Tur wrote: If one deposited it with him, and he accepted responsibility for it—he is obligated to remove it. But if he designated a place for him, such that he said to him, "Behold, the house is before you, place it in whatever location you desire"—he is not required to remove it. Rashi explained: When he did not accept responsibility for it. But Rabbeinu Tam explained: Even if he accepted responsibility for it, since he designated a place for him—it is not found in his house. And to this my master, my father the Rosh, of blessed memory, agreed. Thus far his words. The explanation of the matters: This which the Torah obligated the Israelite to transgress "bal yera'eh" regarding the deposit of a non-Jew based on the acceptance of responsibility—this is a decree of the Torah only regarding chametz. For this matter is nothing more than a cause for monetary liability, such that when it is destroyed—he will need to pay money. And in all laws we hold: A cause for monetary liability is not considered like the money itself, as I wrote in Choshen Mishpat siman 386. However, regarding chametz, where the Torah wrote the language "shall not be found"—that which is found in your hand you transgress, and therefore based on the responsibility it is found in your hand, as we explained in section 8. Therefore, if he accepted responsibility for the chametz of a non-Jew in the house of a non-Jew—he does not transgress, because this is not found in your hand. And therefore, also when he designated a house for him—it is like the house of a non-Jew, and this is not found in your hand. And from the Rambam it appears explicitly that he holds like Rashi. However, this is when he says to him only "Behold, the house is before you." But if he designated a corner for him—it is obvious even according to Rashi and the Rambam that he does not transgress "bal yera'eh" with the acceptance of responsibility, for this is literally like the house of a non-Jew (Beit Yosef).

The Ran wrote in the first chapter: That which is said regarding responsibility, that one violates "it shall not be seen"—it is not specifically when he accepted responsibility explicitly. Rather, even if they deposited it with him without specification—he is obligated to destroy it, for the acceptance of a deposit without specification is like an explicit acceptance of responsibility, as we say in Bava Kamma (48a): "Bring your ox into my domain"—he is liable for its guarding. And I wonder that the Ran, of blessed memory, wrote this also in the name of Rashi, of blessed memory, that without specification it is like an acceptance of responsibility, see there. Yet before us in Rashi (6a) it is explicitly the opposite, for he wrote: "He deposited it with him and he accepted responsibility upon himself," see there. Behold, it is explained that one must explicitly accept responsibility, and likewise from the language of the Rambam it is explained that there must be an explicit acceptance of responsibility, and so wrote the Levush.

And the reason may be said: that even though it is certainly so, that even in an unspecified case he has accepted guardianship upon himself, as I wrote in Choshen Mishpat siman 291, nevertheless this is regarding an Israelite. But regarding a non-Jew, it was explained there in siman 301 that the law of guardians does not apply to him, and consequently there must be an explicit acceptance of responsibility. However, according to the opinion of the Rambam there, that for negligence they are liable in all cases, and according to the opinion of the Behag and the Rosh here that even with responsibility for negligence one violates "it shall not be seen" as I have written – it could be even here in an unspecified case (Chok Yaakov subsection 1). And according to the opinion of the Ran, one must explicitly state that he does not accept responsibility. (And for the halacha, it was explained in Choshen Mishpat there that most poskim disagree with the Rambam, see there.)

But without responsibility—he is not obligated to remove it, even if the non-Jew is subjugated under his hand and dwells with him in the courtyard. He only needs to make a partition ten tefachim high before it, so that he does not forget and eat it. And although regarding other prohibitions we do not require a partition—chametz is different, for we eat it all year round, and there is a concern that he will forget and eat it. But from other prohibitions we are always separated. And a non-Jew who left chametz in the house of the Israelite on Yom Tov, when it is impossible to make a partition—he should overturn a vessel upon it. And even though it is possible with a sheet—this is not a partition of distinction. And on Chol HaMoed he requires a partition. However, if he deposited it for a short time, such as for half a day—he does not require a partition, and overturning a vessel is sufficient (Magen Avraham subsection 5, and so it is implied from Rashi 6a, starting with the words "Makes," see there).

A non-Jew who enters the house of an Israelite on Pesach with his chametz in his hand—one is not required to remove it. For even though he sees the chametz—"yours you shall not see," but you may see that of others. And regarding the concern of eating, one need not be concerned, for the non-Jew is standing over it and will not allow him to eat from his bread. However, it is forbidden to bring it up with him onto the table, even with the separation of a cloth. And even though one eating meat and one eating cheese are permitted with the separation of a cloth, as I wrote in Yoreh Deah siman 88—chametz is different. For its prohibition is in any amount, and it is unavoidable that some small amount will roll from this one to that one. Therefore, if the Israelite is not eating, it is permitted to allow the non-Jew to eat there (Magen Avraham subsection 7). And similarly, when he eats on a table by himself, there is no concern.

The Rosh wrote at the beginning of Pesachim: There are some of the Gaonim who said: An Israelite who deposited his chametz with a non-Jew, or with a fellow Israelite, and the bailee accepted responsibility for it—the bailee is obligated in its removal and not the depositor, even though it is his, since it is not in his possession. And they brought proof from the Mechilta… But Rabbeinu Yonah says that it is always in the possession of the depositor, and he is obligated to remove it by Torah law… and it seems to me that it is a simple matter: for even though the bailee accepted responsibility, nevertheless the essence of the property belongs to the owner… Thus far his words, and so wrote the Tur. And the opinion of the Gaonim is not like the opinion of the Ramban and the Ran that we brought in section 4, that whenever the chametz is not in his possession—he does not violate "it shall not be seen"; for if so, they would not require responsibility. Furthermore: for at least by rabbinic law he violates it, as I wrote there. Rather, their reasoning is that the responsibility of the bailee—removes it from the prohibition of "it shall not be seen." And as for the difficulty the Rosh raised: that the essence belongs to the owner—one could say that this is not called "found with you," since the chametz is not with him, and also because he is secure in the money—it is called that the chametz is not found with him. And that which they wrote: since it is not in his possession—is because if it were in his possession, the responsibility would not be effective. And for the halacha, we hold like Rabbeinu Yonah and the Rosh. And an Israelite who deposited with an Israelite, and the bailee accepted responsibility—both of them violate "it shall not be seen," and so ruled our teacher, the Beit Yosef, in section 4. (And the Pri Chadash and the Sha'agat Aryeh understood the opinion of the Gaonim like the Ramban and the Ran. And in my humble opinion it does not seem so, and see Mekor Chaim. And for the halacha there is no practical difference. And that which appears to my humble opinion we have explained with the help of Heaven.)

And know: that one who forgot to sell his chametz until midday—there is no remedy for this, and he is obligated to destroy it immediately. And if a gentile who knows him comes and takes them for himself after he has brought the chametz out to the street in the manner of hefker, and it is the gentile's will to return it to him after Pesach—he may take it, for the gentile acquired it from hefker, and it is the chametz of a gentile that passed over Pesach, which is permitted even for eating. But if he sold it or gave it to a gentile—it is of no use at all, and he violates "bal yera'eh," for his sale and his gift are nothing. And he still violates "bal yera'eh," for regarding "bal yera'eh"—the Torah established it in his domain, and he is obligated to destroy it after Pesach. (Chatam Sofer siman 113; and Mekor Chaim siman 440 in the Biurim, in the middle of subsection 5; and the Gaon Rabbi Akiva Eiger, in the margin at the beginning of siman 440 on the Magen Avraham subsection 1, see there. And the words of the Noda BiYehuda in the second edition siman 63 are very puzzling, and Heaven forbid one should do so. See there, and examine closely and you will find it light.)